(Editor’s note: This article is part of Just Security’s Symposium, International Law in the Face of Russia’s Aggression in Ukraine: The View from Lviv.)
In March 2023, the International Criminal Court (ICC) captured headlines around the globe when it issued an arrest warrant for Russian President Vladimir Putin. ICC officials alleged that Putin and another senior Russian official are responsible for the war crimes of unlawful deportation of children and unlawful transfer of children from occupied areas of Ukraine to Russia. A year later, in March 2024, the ICC issued further arrest warrants for two of Russia’s top military commanders, and most recently, its former Minister of Defence and its Chief of General Staff of the Armed Forces, on the charges of crimes against humanity and war crimes consisting, in particular, of directing attacks at civilian objects.
An issue that has drawn far less attention is the imposition of Russian citizenship on members of the existing population and transfers of Russia’s own population to occupied Ukrainian territories. Taking Crimea alone, up to 800,000 Russian citizens are estimated to have been transferred there since 2014, while some 100,000 of the local inhabitants have left.
Such actions violate the rules of international law governing armed conflicts, notably the fundamental principles relating to belligerent occupation, which include its inherently temporary nature, and its corollary, the prohibition of displacement and the prohibition on deporting or transferring parts of a State’s own civilian population into the territory it occupies. They can equally be classified as crimes against humanity (deportation or forcible transfer of population, Article 7(1)(d) of the Rome Statute) and war crimes (the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory, Article 8(2)(b)(viii) of the Rome Statute).
While the manifest unlawfulness of Russia’s aggressive policies is beyond question, the more complicated question is how to overcome their consequences.
Addressing this thorny question will require an elaborate strategy from Ukrainian authorities. Ukraine will need to balance protecting the country’s legitimate national security interests while upholding its democratic Constitution and ensuring respect for its international obligations. Achieving this balance is feasible provided that Ukrainian officials consider the individual situation of each Russian national separately and provide an effective opportunity for those individuals to appeal their decisions. Relevant considerations of Ukraine’s own interest in keeping the person in the country – for example to hold him or her accountable for alleged international crimes committed in the armed conflict between Russia and Ukraine – will of course also remain weighty.
At this stage, a few disclaimers should be made in order to avoid any misunderstanding based on readers’ different linguistic backgrounds. For this analysis, the terms “nationality” and “citizenship” as well as “nationals” and “citizens” will be used as synonyms designating the legal bond between a person and a State, regardless of the person’s ethnic origin. It should also be noted that not all persons holding Russian passports and present in the occupied territories were transferred to Crimea by the Russian Federation as a result of its occupation. In fact, in most cases such persons are Ukrainian citizens, on whom Russian nationality was imposed during the occupation. Finally, while for the purposes of this article I will mostly deal with the situation in Crimea, the same or similar arguments apply to other parts of Ukraine’s territory occupied by Russia, as their status under international and Ukrainian law is not different from that of Crimea.
Victims of Forced Russian ‘Passportization’
Since 2014, Russian officials have forcibly imposed citizenship on several million individuals in the occupied parts of Ukraine. Theoretically, they could still refuse to acquire such citizenship – but practically it would be difficult, dangerous, or simply impossible to do so. In a recent judgment in the interstate case Ukraine v. Russia (re Crimea), the European Court of Human Rights noted “the stark and impossible choice for those concerned between continuously having to live with the imposition of Russian citizenship and its consequences, on the one hand, and opting out on the other hand” and established that the “lack of an effective system of opting out of Russian citizenship” interfered with the right to respect for private and family life under Article 8 of the European Convention on Human Rights (paras. 1032-1038 of the Judgment). Such actions also violate international humanitarian law, in particular the prohibition to deprive the civilian population of the occupied territories of their protection under Article 47 of the Fourth Geneva Convention.
The compulsory acquisition of Russian citizenship resulting from such a policy has not been recognized either by Ukraine (see the Law of Ukraine On Ensuring Civil Rights and Freedoms, and the Legal Regime on the Temporarily Occupied Territory of Ukraine, Article 5 Section 6) or by other States respecting international law, for example the European Union and its member States or the United States. According to Ukraine’s Constitution (see Articles 4 and 25), its laws, and various obligations under international law (such as Articles 7 and 16 of the 1997 European Convention on Nationality, to which Ukraine is a party), the persons concerned remain Ukrainian nationals and must be treated as Ukrainian nationals only. Therefore, any challenge to their right to stay in Crimea (or anywhere else in Ukraine) after the restoration of Ukraine’s control of the peninsula lacks legal merit, regardless of their ethnicity, language, political views or other similar characteristics. The same approach will apply to all the children born during the occupation if at least one of the parents is a Ukrainian national. By virtue of Ukrainian law on nationality (see Law of Ukraine On Citizenship of Ukraine, Article 7), these children are Ukrainian nationals from birth.
A Human-Rights Compliant Solution
The situation of persons who had been Russian citizens before the occupation and were transferred to the occupied Ukrainian territories presents a more complicated question. International law is clear that such transfer is a wrongful act, which gives rise to State responsibility and to individual criminal responsibility of the relevant decision-makers. Still, this in itself does not provide a comprehensive answer to the question about the status of “the new Russian settlers” in Ukraine.
Under international and Ukrainian law those “Russian settlers” are foreigners who violated Ukrainian migration rules by illegally entering Ukraine and staying in its territory without Ukraine’s permission.
Following the restoration of Ukraine’s control in the currently occupied territories, the question will arise as to what strategy the government should implement regarding the treatment of those “Russian settlers.” Whatever approach Ukraine ultimately adopts should balance its interests, including security considerations, with the requirements of its own Constitution and obligations under international law, especially those related to the protection of human rights. In particular those under the European Convention on Human Rights, which enjoys a particularly important impact on Ukraine’s legal system. Ukrainian law considers case-law of the European Court of Human Rights to be a source of law and certain judgments as binding (Law of Ukraine On the Execution of Judgments and Application of the Case Law of the European Court of Human Rights, Articles 2 and 17).
While giving any State considerable freedom in deciding on migration matters, international law does contain a number of limitations, the most important of which is prohibition of collective expulsion of aliens enshrined in Article 4 of Protocol 4 of the European Convention on Human Rights, which Ukraine has ratified. In application of that provision in its judgment in Georgia v. Russia (І) the European Court of Human Rights summarized its case-law on the subject and insisted on the requirement to conduct a reasonable and objective examination of the particular case of each individual (paras. 167-178).
Even though the material circumstances of this case are very different from the situation of “the new Russian settlers,” it gives important insights into how Ukraine should organize an efficient but thorough individual examination of each Russian citizen willing to stay in Crimea. While the proper security screening of all such persons would be fundamental, this examination should take into account international human rights standards enshrined in the International Covenant on Civil and Political Rights and the European Convention on Human Rights, which include procedural guarantees (e.g., right to appeal), respect for private and family life, and the prohibition of discrimination.
In practical terms, any Russian citizen who does not already have a valid ground for staying in the Ukrainian territory (such as a valid residence permit) should be given an opportunity to launch the procedure for “legalizing” their presence in Ukraine by submitting an application to the State Migration Service of Ukraine within a fixed period of time after it resumes its work in the respective parts of the country currently under Russian occupation. Alternatively, Ukraine could establish a special administrative authority tasked with processing such applications. This setup might have the advantage of being responsible just for this issue and offering a focused and expedited approach. In either case, the relevant authority will need to carry out an efficient but thorough and individualized review of the situation of the particular person in order to decide whether he or she can continue to reside in Ukraine or should be required to leave.
Whichever exact administrative solution Ukraine opts for, a clear timeframe should be established to avoid any legal uncertainty. Furthermore, Russian citizens who will be granted permission to continue residing in Ukraine in this manner should not be compelled to accept Ukrainian citizenship. At the same time, the period of illegal residence in Crimea should not be counted toward naturalization for persons who express their wish to become citizens of Ukraine.
A significant number of Russian citizens in occupied Crimea had legally resided in the region prior to its occupation (i.e. had had valid Ukrainian residence permits). They should also have an opportunity to request the renewal of their residence permits via a simplified procedure, which should include an appropriate security screening.
Finally, an important consideration applies to individuals charged with serious crimes, including but not limited to war crimes and crimes against humanity, and those in possession of information deemed critical to the country’s security (e.g., military considerations, prosecution of crimes, etc). The same applies to those Russian citizens who would otherwise be required to leave Ukraine for security considerations established during the individual review of their situation (Law of Ukraine On the Legal Status of Foreigners and Stateless Persons, Article 22 Section 2).
The Path Forward
Legally, neither Russian population transfers to the occupied territories of Ukraine nor imposition of Russia’s citizenship on the local Ukrainian population can ever be accepted or “normalized.” The only way to restore the rule of law, justice, and security is to restore Ukraine’s control over its entire territory within its internationally recognized borders. Once this happens, Ukraine will need to treat the individual situations of persons affected by Russian unlawful policies in accordance with Ukraine’s democratic Constitution and its international obligations in the sphere of human rights law.